H1B Termination Notification.

Titan01

Registered Users (C)
Employer’s Failure to Notify BCIS of Termination of H-1B Worker Results in DOL Awarding Back Pay
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On July 18, 2003, the Department of Labor (DOL) issued a decision awarding back pay to an H-1B employee whose employer failed to notify BCIS of the employee’s termination even though the employee was notified directly of the employment termination. In Matter of Ken Technologies, Case No. 2003-LCA-00015, the employer’s noncompliance with the notification requirement led the judge to find that the termination was not bona fide. As a result, the employer’s obligation to pay the H-1B employee continued because BCIS was not notified.

Under federal regulations applicable to the H-1B visa petition, an employer is required to pay an H-1B nonimmigrant employee beginning on the date when the nonimmigrant enters into employment with the employer, or 30 days after the nonimmigrant is first admitted to the U.S. If the nonimmigrant is present in the U.S. on the date of the approval of the petition, the employer’s wage requirement begins 60 days after the date the nonimmigrant becomes eligible to work for the employer. Additionally, if the H-1B employee is in nonproductive status due to a decision by the employer (otherwise known as “benching”), the employer is still required to pay the employee the full amount of the weekly salary at the required wage listed on the Labor Condition Application (LCA).

In this case, although the employer had clearly notified the employee of the termination, the company never notified BCIS that it wanted to withdraw the approved H-1B petition. The judge determined that a bona fide termination of H-1B employment occurs only when an employer notifies BCIS of the termination of the employment relationship. Since the employer in this case did not notify BCIS, a “benching” situation, rather than a bona fide termination, occurred. Therefore, the employer was required to pay the H-1B employee for the unproductive time the H-1B employee was present in the U.S.

Matter of Ken Technologies underscores the importance of notifying the BCIS if an employer decides to terminate an H-1B’s employment before the end of the employee’s authorized period of employment. If BCIS is not notified of the termination, the obligation to pay the former H‑1B employee may continue. Such notification should be sent regardless of whether the termination was voluntary or involuntary.
 
This is interesting. I have couple of questions about this process. How this happens like does employee had hired an attorney and went to court/DOL asking for the back pay or just DOL identified an employee on the bench and asked the employer to pay the money. Can you please describe the whole process in detail. I really appreciate any insights in to this matter.

regards
MOG123
 
H1 termination help wanted

How do u find if ur h1 has been terminated????? is there a site where u can find out that? i am on bench right now but it is an understanding that they will not be terminating the H1. its urgent. is there a site where we can findf out teh status of that?? thanks
 
Re: H1 termination help wanted

Call the ins .. as you do about the status checking through phone ... like that call and check the EAC number.. then that will tell you what happen to that H1 .. terminated or whatever ..

Originally posted by bharghava
How do u find if ur h1 has been terminated????? is there a site where u can find out that? i am on bench right now but it is an understanding that they will not be terminating the H1. its urgent. is there a site where we can findf out teh status of that?? thanks
 
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